Hogg v Clark
| Jurisdiction | Scotland |
| Judgment Date | 10 October 1958 |
| Date | 10 October 1958 |
| Docket Number | No. 2. |
| Court | High Court of Justiciary |
HIGH COURT
Lord Justice-General. Lord Carmont. Lord Sorn.
Evidence in criminal cases—Judge's refusal to admit competent evidence—Defence plan disallowed in cross-examination of prosecution witnesses—Review.
A van driver was prosecuted under sec. 12 (1) of the Road Traffic Act, 1930, for driving without due care and attention at a road junction in a town where the van had collided with a motor cycle. For the purposes of the trial, a plan of the junction had been prepared by an architect who gave evidence for the defence. The defence agent in the course of his cross-examination of a prosecution eye-witness of the accident put the plan to the witness and sought to test his evidence in relation to it. The Sheriff-substitute disallowed the use of the plan at that stage on the ground that it was a defence production which had not yet been authenticated. The plan was later authenticated in evidence for the defence. Thereafter the accused was convicted.
Held that the use of the plan by the defence in cross-examination being competent and the line of evidence it was intended to elicit having been improperly excluded, it could not be said that there had not been prejudice to the defence; and conviction accordingly quashed.
George Hogg, motor driver, Lochiesedge, Hawick, was charged in the Sheriff Court of Roxburgh, Berwick and Selkirk at Hawick on a complaint at the instance of Richard Scott Clark, Procurator fiscal, Jedburgh, with driving without due care and attention and without reasonable consideration for other persons using the road and so causing his van to collide with a motor cycle at the junction of The Loan, Cheviot Road, and Renwick Road, Hawick, contrary to the Road Traffic Act, 1930, section 12 (1).
The accused pleaded not guilty, and, after hearing evidence, the Sheriff-substitute (C. de B. Murray) found the accused guilty as libelled. At the request of the accused he stated a case on appeal to the High Court of Justiciary.
The stated case set out the following facts as admitted or proved:—"(1) The appellant is a motor lorry driver employed by Hawick Co-operative Society, and on Monday, 24th March 1958, he was driving a two ton Bedford goods van, registration number BGL 120, which is owned by the Co-operative Society. (2) About 3 p.m. on that day he was driving along Cheviot Road, Hawick. This is a side street leading in to The Loan which is one of the main streets in Hawick. The appellant had been delivering goods at a house in Cheviot Road and was turning back towards The Loan. His intention was to cross The Loan and enter another side street, Renwick Terrace. The entrance to Renwick Terrace is ten yards to the east of, or nearer the town centre than, the entrance to Cheviot Road. (3) A motor cycle, registration number HHH 821, was at that time being driven down The Loan by the witness Vivian Sharp at a speed of about 25 m.p.h. (4) When the appellant reached the junction of Cheviot Road with The Loan he slowed down and then proceeded to cross The Loan. Although there was nothing to prevent the appellant seeing the witness Sharp, who was at that moment coming down The Loan towards him, he failed to notice him. (5) The witness Sharp saw the appellant's van emerging from the side road but he expected it to stop...
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